Cosmic Corp. v. Miami-Dade County, MIAMI-DADE

• Court: Florida District Court of Appeals
• Writing for the Court: SHEVIN; COPE; SORONDO
• Citation: Cosmic Corp. v. Miami-Dade County, 706 So.2d 347 (Fla. App. 1998)
• Decision Date: 21 January 1998
• Docket Number: MIAMI-DADE,No. 97-3179,97-3179
• Parties: 23 Fla. L. Weekly D290 COSMIC CORP., d/b/a Coco's Lounge, and Ian Davis, Appellants, v.COUNTY, and City of North Miami, Appellees.

Page 347

706 So.2d 347

23 Fla. L. Weekly D290

COSMIC CORP., d/b/a Coco's Lounge, and Ian Davis, Appellants, v. MIAMI-DADE COUNTY, and City of North Miami, Appellees.

No. 97-3179.

District Court of Appeal of Florida Third District.

Jan. 21, 1998.

Rehearing Denied March 25, 1998.

Adorno & Zeder, and Marlon A. Hill, Tallahassee, and Raoul G. Cantero, III, Coconut Grove, for appellants.

Robert A. Ginsburg and Thomas H. Robertson and Shubin & Bass and Pedro P. Echarte, Jr., Miami, for appellees.

Before COPE, SHEVIN and SORONDO, JJ.

SHEVIN, Judge.

Cosmic Corp. and Ian Davis appeal a temporary injunction entered in favor of Miami-Dade County and the City of North Miami (collectively "municipalities"). We reverse.

The record demonstrates that the municipalities did not meet their burden to warrant issuance of the injunction. A temporary injunction should only be granted where there is a showing of

(1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law, (2) the substantial likelihood of success on the merits, (3) that the threatened injury to petitioner outweigh any possible harm to the respondent, and (4) that the granting of the preliminary injunction will not disserve the public interest.

U.S. 1 Office Corp. v. Falls Home Furnishings, Inc., 655 So.2d 209, 210 (Fla. 3d DCA 1995); Graham v. Edwards, 472 So.2d 803, 806 (Fla. 3d DCA 1985), review denied 482 So.2d 348 (Fla.1986).

The municipalities failed to show a substantial likelihood of success on the merits of the litigation where, as here, there appears to be merit in Cosmic's argument that it is grandfathered in under the Dade County Code and any argument to the contrary may be estopped because of the County's actions, which include the issuance of at least two separate Certificates of Occupancy.

The settlement agreement between Cosmic and the County provides that if Cosmic fails to proceed to a public hearing, it will "terminate all operations at the premises described in the Third Party Complaint which would be in violation of the provisions of Chapter 33, Metropolitan Dade County Code...." Based on the verified pleading now before us, Cosmic's position is that its use of the business premises is grandfathered in under the Dade County Code. That being so, Cosmic's use of the business premises would not be in violation of the provisions of Chapter 33. Based on the record before us, the Certificate of Occupancy may have been improvidently revoked, and the trial court erred by entering the temporary injunction directing Cosmic to cease operations.

Although the foregoing is fatal to the temporary injunction, we conclude that the balance of harms weighs in favor of Cosmic as well. No...